2026 WI 4
Wis.
2026
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Background

  • Google scanned Rauch Sharak’s Google Photos files for known CSAM, an employee opened flagged files, and Google reported them to NCMEC and law enforcement. 1
  • Police traced the tip to Rauch Sharak, viewed the files without a warrant, then obtained a warrant and found CSAM on his phone. 2
  • Rauch Sharak was charged with 15 counts of possession of child pornography and moved to suppress, claiming Google acted as a government agent. 3
  • The circuit court denied suppression, finding Rauch Sharak failed to show Google was an instrument or agent of the government. 4
  • The court of appeals certified questions on privacy expectations, private-versus-government search, and whether a warrant was needed to view the CyberTip files. 5
  • The supreme court held Google was a private actor and that law enforcement’s later viewing fit the private search doctrine. 6

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Was Google a government agent for Fourth Amendment purposes? 7 Rauch Sharak argued statutes and NCMEC involvement made Google a government instrument. State argued Google acted independently for its own business reasons. Google was a private actor, not a government agent. 8
What test governs private-versus-government search? 9 Rauch Sharak urged a rigid three-part rule from Payano-Roman. State urged totality of the circumstances. Totality of the circumstances governs; Payano-Roman factors are nonexclusive. 10
Did law enforcement need a warrant to view the CyberTip files? 11 Rauch Sharak said viewing the files was a new search requiring a warrant. State said officers only repeated Google’s private search within its scope. No warrant was needed under the private search doctrine. 12
Did Rauch Sharak retain a reasonable expectation of privacy in the account files? 13 Rauch Sharak claimed privacy remained despite Google’s scanning terms. State argued terms of service and the search defeat the claim. Court did not reach the privacy-expectation question. 14

Key Cases Cited

  • United States v. Jacobsen, 466 U.S. 109 (U.S. 1984) (private search doctrine permits government to repeat a private search within its scope 15)
  • Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (U.S. 1989) (private actors become government agents based on the degree of government participation under all circumstances 16)
  • State v. Payano-Roman, 290 Wis. 2d 380 (Wis. 2006) (Wisconsin adopts the totality-of-the-circumstances test for government-search analysis 17)
  • State v. Rogers, 148 Wis. 2d 243 (Ct. App. 1988) (described considerations relevant to whether a search is private 18)
  • United States v. Booker, 728 F.3d 535 (6th Cir. 2013) (example of law-enforcement involvement creating agency in a medical procedure search 19)
  • United States v. Ringland, 966 F.3d 731 (8th Cir. 2020) (Google acted from its own business interests in removing child sexual abuse material 20)
  • United States v. Miller, 982 F.3d 412 (6th Cir. 2020) (Google’s CSAM scanning serves its own interests rather than government direction 21)
  • United States v. Rosenschein, 136 F.4th 1247 (10th Cir. 2025) (section 2258A’s disclaimer supports treating ESP scanning as private action 22)
  • United States v. Sykes, 65 F.4th 867 (6th Cir. 2023) (section 2258A does not make ESPs government agents 23)
  • United States v. Rosenow, 50 F.4th 715 (9th Cir. 2022) (section 2258A disclaimer defeats government-agent theory 24)
  • United States v. Meals, 21 F.4th 903 (5th Cir. 2021) (section 2258A does not convert ESP scanning into government action 25)
  • Children's Health Defense v. Meta Platforms, Inc., 112 F.4th 742 (9th Cir. 2024) (section 230 is passive and unlike coercive regulations in Skinner 26)
  • Does 1-6 v. Reddit, Inc., 51 F.4th 1137 (9th Cir. 2022) (interprets section 230(e)(5) as limited to direct trafficking liability 27)
  • United States v. Bebris, 4 F.4th 551 (7th Cir. 2021) (ESPs scanning for CSAM are private actors 28)
  • United States v. Richardson, 607 F.3d 357 (4th Cir. 2010) (ESP CSAM scanning is private, not governmental, action 29)
  • State v. Pauli, 979 N.W.2d 39 (Minn. 2022) (state supreme court held ESP CSAM screening is private action 30)
  • State v. Lizotte, 197 A.3d 362 (Vt. 2018) (state supreme court held ESP CSAM screening is private action 31)
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